Table Of ContentLaw, Women Judges and the
Gender Order
Thisbookseekstounderstandhowwomenjudgesaresituatedaslegalknowerson
theHighCourtofAustraliabyaskingwhetheranear-equalgenderbalanceonthe
HighCourthasdisruptedtheCourt’shistoricallymasculinistgenderregime.
This bookexamineshowtheHigh Court’sgenderregime operatesoncethere
ismorethanonewomanonthebench.Itexploresthefollowingquestions:How
have the Court’s gender relations accommodated the presence women on the
bench? How have the women themselves accommodated those pre-existing
gender relations? How might legal judgments and reasoning change as a result of
changinggenderdynamicsonthebench?Todevelopanswerstothese(andother)
questionsthe bookpursuesa methodology that conceptualises the HighCourt as
aninstitutionwithaparticulargenderregimeshapedhistoricallybythedominant
genderorderofthewidersociety.Theintersectionbetweenthe(gendered)indi-
vidualsand the (gendered) institution in whichtheyoperateproduces and repro-
duces that institution’s gender regime. Hence, the enquiry is not so much asking
‘have women judges made a difference?’ but rather is asking how should we
understand womenjudges’relationshipwiththe law,a relationshipthat isshaped
as much by the individual judge as by the institutional context in which they
operate.
Scholars, legal practitioners and researchers interested in judicial reasoning,
gender diversity and the legal profession, gender and politics will be interested
in this book because it breaks new ground as a case study of a Court’s gender
regime at a particular time.
Kcasey McLoughlin is a Senior Lecturer at Newcastle Law School, Australia.
Law, Women Judges and the
Gender Order
Lessons from the High Court of Australia
Kcasey McLoughlin
Firstpublished2022
byRoutledge
2ParkSquare,MiltonPark,Abingdon,OxonOX144RN
andbyRoutledge
605ThirdAvenue,NewYork,NY10158
aGlassHousebook
RoutledgeisanimprintoftheTaylor&FrancisGroup,aninformabusiness
©2022KcaseyMcLoughlin
TherightofKcaseyMcLoughlintobeidentifiedasauthorofthisworkhas
beenassertedbyherinaccordancewithsections77and78ofthe
Copyright,DesignsandPatentsAct1988.
Allrightsreserved.Nopartofthisbookmaybereprintedorreproduced
orutilisedinanyformorbyanyelectronic,mechanical,orothermeans,
nowknownorhereafterinvented,includingphotocopyingandrecording,or
inanyinformationstorageorretrievalsystem,withoutpermissionin
writingfromthepublishers.
Trademarknotice:Productorcorporatenamesmaybetrademarksor
registeredtrademarks,andareusedonlyforidentificationandexplanation
withoutintenttoinfringe.
BritishLibraryCataloguing-in-PublicationData
AcataloguerecordforthisbookisavailablefromtheBritishLibrary
LibraryofCongressCataloging-in-PublicationData
Acatalogrecordhasbeenrequestedforthisbook
ISBN:978-0-367-23035-7(hbk)
ISBN:978-1-032-13240-2(pbk)
ISBN:978-0-429-28853-1(ebk)
DOI:10.4324/9780429288531
TypesetinBembo
byTaylor&FrancisBooks
Contents
Acknowledgments vi
Introduction: ‘Men in skirts’ and other dilemmas and
disappointments 1
1 The masculinist foundations of Australia’s legal and constitutional
framework 25
2 Jobs for the girls: Judicial appointments to the High Court of
Australia and the politics of merit 42
3 Sworn to be: Gender, difference and judicial swearing-in speeches 67
4 A judgment of one’s own? Staking a claim to judicial authority 95
5 PGA v The Queen and the judicial imagination 115
6 Gendered harms in Monis v The Queen 142
7 The art of looking back: The farewell ritual and the construction
of judicial legacies 168
8 The High Court today: Negotiating progress, privilege and
hegemonic masculinity 188
Conclusion: From non-persons to almost-parity: a masculinist
gender order disrupted? 217
Bibliography 227
Index 250
Acknowledgments
This book has taken some time to come to fruition and it has only been made
possible with the support of many people. It began its life as my doctoral thesis
and, as such, I remain indebted to my principal supervisor, Jim Jose, for his
unswerving patience, belief in challenging disciplinary boundaries, and for the care
andrespect hehas shown for myideas.He generouslyreaddrafts of thisbookand
I am immensely grateful for his sharp insights and sage advice. I am honoured
to have been in receipt of his friendship and owe him an enormous debt of
gratitude for his unstinting support. I am also grateful to my co-supervisor,
Katherine Lindsay, for generously sharing her expertise in Constitutional Law
and for fostering my interest in the High Court of Australia and the judges
who sit on it. My sincere thanks goes to thesis examiners, Clare McGlynn and
Katharine Gelber, not only for their insightful and generous feedback, but
also, for their ongoing encouragement and guidance. I further acknowledge
the judging panel for the Australian Political Studies PhD Prize, in particular
AJ Brown and Linda Hancock for their very supportive encouragement in
pursuing this book project.
I gratefully acknowledge the support I have received from the University of
Newcastle to support the research underpinning this book including funding
from the Women in Research Fellowship scheme and the Gender Research
Network’s Program in Gender Based Violence. I acknowledge the support of
the Gender Research Network, a wonderfully supportive group of inter-
disciplinary feminist scholars and activists led by Trisha Pender. Newcastle Law
School has provided a supportive space to pursue my research and I thank my
Head of School, Tania Sourdin, for cultivating such an environment. I
acknowledge my colleagues at Newcastle Law School, many of whom have
become firm friends. In particular, I am grateful to John Anderson, Ann Apps,
Rachel Brien, Sher Campbell, Tim Connor and Amy Maguire for their colle-
gial support and good humour over many years. I have been privileged to have
worked with some very talented research assistants during the writing of this
book. I thank Hannah Stenstrom for her sharp analytical insights, exceptional
skills in editing and for keeping me on track. I am also grateful to Rhanee
Rego for her careful attention to detail in following up additional sources.
Acknowledgments vii
I have been fortunate to have received mentoring, encouragement and
feedback from many wonderful feminist scholars, working in both Law and
Political Science. I am very grateful to have had the opportunity to visit Queen
Mary University of London, University of Kent and the Human Rights Insti-
tute at the University of New South Wales. I thank Rosemary Hunter for her
exceedingly generous mentorship—in acting as host during my visits to Queen
Mary and Kent, and for providing very helpful feedback on earlier iterations of
some of the ideas explored in this book. I also acknowledge Louise Chappell’s
generous mentorship and kindness—I am grateful to her for hosting me at the
Human Rights Institute, for including me in her larger research project about
gender and judging at the International Criminal Court and for modelling care
and collaboration in all that she does. I would also like to acknowledge feed-
back, support and encouragement from Margaret Thornton, Ann Genovese,
Erika Rackley, Hilary Sommerlad, Kate Malleson, Lizzie Barmes, Renee
Knake Jefferson and Kim Rubenstein.
I thank Colin Perrin at Routledge for his advice when drafting the proposal
for this book (and patience as deadlines passed us by). Thanks also to Ajanta
Bhattarcharjee for guiding the manuscript through the publication process so
smoothly.
Heartfeltthanksareduetoallofmyfamilyandfriendsfortheirpatience,interest
andefforts toensureI retainedasense ofhumour duringtheresearchandwriting
process. Thank you to Alexander Winn, Kerrin Houghton, Elicia Kristenthal,
Danielle Ingle and Mark Gauntlett for their friendship, moral support and many
actsofkindness,bothbigandsmall.Thanksalsotomybrother,JakeMcLoughlin,
and sister in law, Francesca Hague-Blundy, for their support and encouragement.
Specialthanksareduetomyparents,CarolineandAugMcLoughlinforofferinga
lifetime of love and support. As doting grandparents, they have gone above and
beyond providing extensive childcare which has given me the time and space to
write. My in-laws, Anne and Denis Forrest, have likewise provided practical
supportandencouragementandIthankthemfortheirgenerosity.
And finally, I do not have the words to adequately express my gratitude to
myhusband,DaveForrestforhiscommitmenttomeandtoourfamily.Hehas
demonstrated enormous patience and unwavering support and I am grateful for
his insistence not only that I was capable of finishing, but that the book was
worth finishing. I am grateful to our son Arthur for his joyful sense of fun and
for reminding me what truly matters. Our daughter, Imogen, arrived shortly
beforethisbookwenttoprintbutitfeelsasthoughshehasbeenhereallalong.
Dave, Arthur and Imogen have provided me with more happiness, adventure
and love than I could have ever imagined. I am so very fortunate to have them
in my life and their love and support means the world to me.
This book contains substantially revised versions of my earlier work including:
‘Judicial fictions and the fictive feminists: Re-imagination as feminist critique in
PGA v The Queen’ (2016) Griffith Law Review 24: 592–615; ‘“Collegiality is not
compromise”: Farewell Justice Crennan, the consensus woman’ (2016) The
viii Acknowledgments
Australian Feminist Law Journal 42: 241–271; ‘A particular disappointment? Judging
womenontheHighCourtofAustralia’(2015)FeministLegalStudies23:273–294;
‘Thepoliticsof genderdiversityon theHighCourt ofAustralia’(2015)Alternative
Law Journal 40: 166–170 and (with Jim Jose) ‘The politics of the public and pri-
vatespheres:TheHighCourt’sdecisioninMonisandthegenderedprivilegingof
free speech’ (2017) Australian Journal of Political Science 52(4): 565–579.
Introduction
‘ ’
Men in skirts and other dilemmas and
1
disappointments
In 1987 Mary Genevieve Gaudron, a trailblazing woman lawyer, took her
place on the High Court of Australia, the first woman to serve on the Court
since its establishment in 1903. She retired in 2003 well before the con-
stitutionally prescribed retirement age of 70. In her farewell speech to Aus-
tralian Women Lawyers, Justice Gaudron, perhaps understanding better than
most the complex gender politics at play in disrupting masculinist gender
regimes, remarked that leaving the Court was the best way of ensuring that
another woman was appointed (Gaudron cited in Batrouney 2004: 343).
Unfortunately itproved to beotherwise. Her vacancy was notfilled byanother
legal woman of standing, but by a man, Dyson Heydon, described by the then
Justice Kirby as ‘a most accomplished and civilised judge and man’ (Kirby
2003). Outside the High Court building while his swearing-in ceremony was
in progress, 2-year-old Vivien Clarke and her mother staged a protest—not so
much about the new judge in particular, but rather, that his appointment
meant that the Court would be restored to its traditional composition of all
men. The daughter held aloft a sign which read: ‘Mum, Can Women Be High
Court Judges?’ On the reverse side were the words, ‘Yes, darling—there was a
good one when I was a girl’.2 The then Prime Minister John Howard had
justified the appointment on the basis of merit and suggested that it would be
‘quite unrealistic’ to ‘choose people according to some strict gender or geo-
graphical basis, when you’re dealing with the highest court in the country’
(Howard cited in Donald 2002). In any case, two years would pass before
Vivien Clarke’s question received an affirmative answer. In 2005 the Liberal–
National Coalition government appointed Susan Crennan, and then followed
1 Parts of this chapter draw on material and arguments previously published in
McLoughlin.K.2015.‘Aparticulardisappointment?Judging womenandtheHigh
CourtofAustralia’.FeministLegalStudies.23(3):273–294.Reprintedbypermission
from Springer, Feminist Legal Studies ‘A particular disappointment? Judging women
and the High Court of Australia’, Kcasey McLoughlin [COPYRIGHT] (2015).
2 This account is taken from Crabb’s (2003) article on Justice Heydon’s swearing-in
as a Justice of the High Court.
DOI: 10.4324/9780429288531-1
